Professional Documents
Culture Documents
GOP Reply Brief in Support of Emergency Application Final
GOP Reply Brief in Support of Emergency Application Final
20A53
IN THE
Counsel for Applicants Joseph B. Scarnati III, President Pro Tempore, and
Jake Corman, Majority Leader of the Pennsylvania Senate
October 6, 2020
TABLE OF CONTENTS
CONCLUSION............................................................................................................. 24
APPENDIX:
i
TABLE OF AUTHORITIES
CASES
Alliance for Retired Americans v. Dunlap, No. CV-20-95 (ME Sup. Ct. Sept.
30, 2020) ................................................................................................................ 3
Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070 (July 24, 2020)..................... 2
Clarno v. People Not Politicians, No. 20A21 (Aug. 11, 2020) ....................................... 2
Commonwealth ex rel. Dummit v. O'Connell, 181 S.W.2d 691 (Ky. 1944) ................ 21
Crawford v. Marion County Election Board, 553 U.S. 181 (2008) ............................. 11
Crossey et al. v. Boockvar, No. 266 MD 2020 (Leavitt, P.J.) (Pa. Comm. Ct.
Sept. 4, 2020) ................................................................................................. 10, 11
Driscoll v. Stapleton, DA 20-0295, 2020 MT 247 (Mont. Sept. 29, 2020) .................... 3
ii
First Federal Savings and Loan Association v. Swift, 321 A.2d 895 (Pa. 1974) ....... 22
In Get Oil Out! Inc. v. Exxon Corp., 586 F.2d 726 (9th Cir. 1978) ....................... 13, 14
League of Women Voters of Mich. v. Sec'y of State, 2020 Mich. App. LEXIS
4454 (Mich. Ct. App. July 14, 2020) ..................................................................... 3
League of Women Voters of Mich. v. Sec'y of State, S.C.: 161671, 2020 Mich.
LEXIS 1565 (Mich. Sept. 11, 2020) ...................................................................... 3
Mich. All. for Retired Am. v. Sec'y of State, S.C.: 161837, 2020 Mich. LEXIS
1417 (Mich. Aug. 28, 2020) ................................................................................... 3
Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974) ............... 13
New Ga. Project v. Raffensperger, No. 20-13360-D, 2020 U.S. App. LEXIS
31405 (11th Cir. Oct. 2, 2020) ............................................................................... 2
North Carolina Alliance for Retired Americans v. North Carolina State Board
of Elections, 20 CVS 8881 ..................................................................................... 3
Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) .................................... 18, 19, 21
iii
Piper v. Tax Claim Bureau of Westmoreland County, 910 A.2d 162 (Pa.
Cmwlth. 2006) ..................................................................................................... 22
Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S. Ct. 1989, 48 L. Ed. 2d
540 (1976) ............................................................................................................ 13
Republican Nat'l Comm.v. Democratic Nat'l Comm., 140 S. Ct. 1205 (Apr. 6,
2020) ...................................................................................................................... 2
Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) .......................... 7
South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29,
2020) ...................................................................................................................... 2
In re Special Election for the 18th Pa. House Dist., 2020 Pa. Dist. & Cnty.
Dec. LEXIS 935 (Pa. Ct. Comm. Pleas Apr. 3, 2020) ......................................... 17
Tex. Democratic Party v. Abbott, No. 19A1055 (June 26, 2020) .................................. 2
VoteVets Action Fund v. Detzner, No. 4:18cv524-MW/MJF (N.D. Fla. 2018) ............ 13
iv
CONSTITUTIONS AND STATUTES
OTHER AUTHORITIES
https://web.archive.org/web/*/https://www.votespa.com/Voting-in-
PA/Pages/Mail-and-Absentee-Ballot.aspx. Compare Penn. Secretary of
State, Mail-in and Absentee Ballots, (archived on September 23, 2020 at
6:40:32 GMT), https://web.archive.org/web/20200923064032/https://
www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-Ballot.aspx
(“8 pm November 3 - VOTED BALLOTS must be RECEIVED by your
county election office - postmarks are not enough) with Penn. Secretary
of State, Mail-in and Absentee Ballots, (archived on September 23, 2020
at 21:55:59 GMT), https://web.archive.org/web/20200923215559/
https://www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-
Ballot.aspx ........................................................................................................... 23
v
The Supremacy Clause explicitly states that “the Judges in every State shall
be bound” by federal law. U.S. Const., Art. VI, cl. 2. The Supreme Court of
Pennsylvania issued a decision that clearly violates federal law and the United
States Constitution. By judicial fiat, that decision removed the principal method by
after Election Day and counted after Election Day. By doing so, the decision creates
multiple election days after November 3, 2020, in violation of federal law since votes
can be cast (i.e. voted) after November 3, 2020. The decision also usurped the
times, places, and manner of federal elections in Pennsylvania. This was done
this Court grant Applicants’ Emergency Motion For Stay. Contrary to the incorrect
probability that the Court will consider the case on the merits and more than a fair
prospect that a majority of the Court will vote to reverse the decision below because
applicants have standing to bring an appeal, the decision violates federal law and
the United States Constitution, and the public interest favors granting a stay.
This Court has signaled its repeated unwillingness for federal courts to
disrupt duly enacted state election policies so close in time to the General Election.
See, e.g., Andino v. Middleton, No. 20A55, 592 U.S. (Oct. 5, 2020) (staying district
1
court injunction of South Carolina’s witness requirement for absentee ballots).1
Other federal courts have done the same. See, e.g., New Ga. Project v. Raffensperger,
No. 20-13360-D, 2020 U.S. App. LEXIS 31405 (11th Cir. Oct. 2, 2020) (overturning
and manufacturing its own ballot deadline, which mirrors the Supreme Court of
Pennsylvania’s remedy.).
Seeing this, Respondents took to forum shopping in state court, and found a
receptive forum at the Supreme Court of Pennsylvania. If this Court does not grant
a stay, Respondents and their national allies will continue to forum shop by
Supreme Court of Pennsylvania is an outlier because most state courts have refused
to fundamentally alter state election law via judicial fiat under the guise of COVID-
1 See also, e.g., Republican Nat’l Comm.v. Democratic Nat’l Comm., 140 S. Ct. 1205 (Apr. 6, 2020)
(granting stay of district court order requiring Wisconsin to count late postmarked absentee ballots
for primary election, pending final disposition on appeal); Merrill v. People First Of Ala., No.
19A1063 (July 2, 2020) (granting stay of district court order enjoining Alabama’s duly enacted photo
identification and witness requirements for absentee voting during the pandemic); Little v. Reclaim
Idaho, No. 20A18 (July 30, 2020) (granting stay of district court orders relaxing Idaho’s rules for
ballot initiatives); Clarno v. People Not Politicians, No. 20A21 (Aug. 11, 2020) (granting stay of
district court order relaxing Oregon’s election procedures because of the coronavirus pandemic);
Thompson v. DeWine, No. 19A1054 (June 25, 2020) (denying application to vacate Sixth Circuit stay
of district court order suspending Ohio’s enforcement of in-person signature requirements and
extending filing deadlines for initiative campaigns); Tex. Democratic Party v. Abbott, No. 19A1055
(June 26, 2020) (denying application to vacate Fifth Circuit stay of district court order forcing Texas
to implement no-excuse absentee voting). See also Little v. Reclaim Idaho, 591 U.S. No. 20A18, 2020
U.S. LEXIS 3585 (Roberts, C.J., concurring) (agreeing with the Court’s stay of a district court order
altering initiative petition procedures in light of COVID-19 due in part to the district court’s failure
to “accord sufficient weight to the State’s discretionary judgments about how to prioritize limited
state resources across the election system as a whole.”). This Court has also repeatedly refused to
disrupt states’ efforts to tackle issues related to COVID-19 outside of the election law context. See,
e.g., South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29, 2020); Calvary Chapel
Dayton Valley v. Sisolak, No. 19A1070 (July 24, 2020).
2
(N.H. Sup. Ct. Oct. 2, 2020) (declining to extend mail ballot deadlines in New
Hampshire); Alliance for Retired Americans v. Dunlap, No. CV-20-95 (ME Sup. Ct.
Sept. 30, 2020) (declining to extend mail ballot deadlines in Maine); Driscoll v.
Stapleton, DA 20-0295, 2020 MT 247 (Mont. Sept. 29, 2020) (Vacating trial court
injunction of mail ballot deadlines in Montana); Mich. All. for Retired Am. v. Sec'y of
State, SC: 161837, 2020 Mich. LEXIS 1417 (Mich. Aug. 28, 2020) denying leave to
appeal, No. 20-000108-MM (Mich. Ct. App. Sept. 18, 2020) (extending absentee
ballot deadlines); League of Women Voters of Mich. v. Sec’y of State, 2020 Mich. App.
LEXIS 4454 (Mich. Ct. App. July 14, 2020) (holding received-by deadline for
on the right to vote and was a reasonable, nondiscriminatory provision that protects
the integrity and reliability of the electoral process); See also League of Women
Voters of Mich. v. Sec’y of State, SC: 161671, 2020 Mich. LEXIS 1565 (Mich. Sept.
11, 2020) (denying motion for reconsideration of denial of application for leave to
SJC-12996, 485 Mass. 541, 2020 Mass. LEXIS 510, 151 N.E.3d 429 (Mass. Aug. 26,
2020) (September 1 deadline for receipt of mail-in primary election ballots not
Carolina State Board of Elections, 20 CVS 8881 (N.C. Sup. Ct. Oct. 5, 2020)
2The settlement accepted by the North Carolina Superior Court in North Carolina Alliance for
Retired Americans v. North Carolina State Board of Elections, 20 CVS 8881 was then enjoined via a
3
I. APPLICANTS HAVE STANDING TO BRING THIS APPEAL.
case demonstrates that any attack on Applicants’ standing is meritless because the
deprive, Applicants, and the majority of the Pennsylvania General Assembly they
represent of their federal and constitutional rights. This deprivation confers Article
This Court is responsible for assuring “that state courts will not be the final
Tea Co., 309 U.S. 551, 557 (1940). “The predominant interest promoted by this
Court.” ASARCO, Inc. v. Kadish, 490 U.S. 605, 622 (1989) (citing
Richardson v. Ramirez, 418 U.S. at 42, n. 13 (this Court may review a declaratory
temporary restraining order granted by the United States District Court for the Eastern District of
North Carolina. Moore v. Circosta, No. 5:20-CV-507-D (E.D. N.C. Oct. 3, 2020) (Doc. 47). The Moore
action was brought in federal court because the plaintiffs argued that memoranda issued by the
North Carolina State Board of Elections, in conjunction with the settlement negotiations (and
ultimately a settlement on October 2, 2020) in the state court lawsuit concerning absentee ballots,
violated the Elections Clause because the memoranda are inconsistent with the North Carolina
General statutes and improperly usurp legislative power to regulate federal elections. Id. After the
state action was enjoined by temporary restraining order, the case was transferred to the Honorable
William L. Osteen, Jr., United States District Judge in the Middle District of North Carolina. Id. A
hearing on a motion for preliminary injunction is scheduled for Thursday, October 8, 2020 at 10:30
a.m.
3 In a procedural sleight of hand, the Pennsylvania Supreme Court denied intervention to the
leadership of the Pennsylvania House. This court should not countenance an attempt by state
supreme courts to deny this Court jurisdiction by permitting intervention in state cases by one house
of a state legislature while denying another, when issues are related to power directly delegated to
state legislatures by the United States Constitution, as is the case here. The House leadership is on
record in this matter supporting the relief sought.
4
judgment granted by a state court, for “any other conclusion would unnecessarily
permit a state court of last resort, quite contrary to the intention of Congress in
grounds without any possibility of state officials who were adversely affected by the
certiorari from a state court decision “if the judgment of the state court causes
direct, specific, and concrete injury to the parties who petition for our review, where
the requisites of a case or controversy are also met.” ASARCO, 490 U.S. 623-24. See
also Virginia v. Hicks, 539 U.S. 113, 120-121; City of Erie v. Pap's A.M., 529 U.S.
277, 288-89.
Motion to Intervene, Applicants argued that: (1) they could have been joined as an
original party in the action; and (2) that the determination of the action will affect
Respondents’ requested relief would diminish and usurp the rights and obligations
that the United States Constitution vests in the Pennsylvania General Assembly,4
namely the right to enact the times, places, and manner of holding elections under
the Constitution’s Elections Clause. See id. at ¶¶ 14-21 (citing U.S. Const. art. I, §4).
4 Including the Pennsylvania Senate, of which Applicants and the House leadership who attempted
to intervene represent a majority.
5
Motion to Intervene, indicating that Applicants had standing below and the
Pennsylvania’s “final judgment altering tangible legal rights,” ASARCO, 490 U.S. at
619, an actual injury in fact—the diminishment of their authority under the United
under Article III. Warth v. Seldin, 422 U.S. 490, 501 (1975). Applicants, as they did
below, allege a specific injury stemming from the Supreme Court of Pennsylvania’s
(1) they had standing in the case below as determined by the state Supreme Court;
and, (2) the decision of the Supreme Court of Pennsylvania injures them sufficient
to confer Article III standing independently. See ASARCO, 490 U.S. 623-24. See also
Virginia v. Hicks, 539 U.S. 113, 120-121; City of Erie v. Pap's A.M., 529 U.S. 277,
288-89.
this case from Bethune-Hill is that this case concerns the diminishment of the
authority of the Pennsylvania General Assembly to regulate the times, places, and
Clause of the United States Constitution. See id. at 1953-54. In this way, this case
6
is more akin to the standing of the litigants in Sixty-seventh Minnesota State Senate
v. Beens, 406 U. S. 187 (1972) (per curiam) and Arizona State Legislature v. Arizona
Independent Redistricting Comm’n, 576 U.S. 787 (2015) where the decision to
reduce the size of the legislative body and remove the primary authority for
appropriate legal entities for appeals Beens, 406 U. S. at 194; Arizona State
Legislature, 576 U.S. at 791-92. In essence, this case is not about the legislators’
general interest in their laws, but about their concrete interest in their own
constitutionally-delegated authority.
In this way, this case is more akin to Coleman v. Miller, 307 U. S. 433, (1939),
than to Bethune-Hill. In Coleman, plaintiffs were 20 (of 40) Kansas State Senators,
whose votes “would have been sufficient to defeat [a] resolution ratifying [a]
proposed [federal] constitutional amendment.” 307 U.S. at 446. The Court held they
Constitution, the State Lieutenant Governor’s tie-breaking vote for the amendment.
Id. Coleman, as later explained in Raines, stood “for the proposition that legislators
whose votes would have been sufficient to defeat (or enact) a specific legislative Act
have standing to sue if that legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely nullified.” 521 U.S., at
823. That Applicants have standing here fits that bill. The Supreme Court of
“in the future,” purporting to set the time to accept mail-in and absentee ballots.
7
Raines, 521 U.S., at 823-824. This dispute, in short, “will be resolved . . . in a
judicial action.”]. Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982).
its leadership, has attempted to participate in the case on an equal and parallel
footing as the Senators by intervening in the case below. See Amicus Brief of Cutler,
et al. The Pennsylvania House of Representatives attempted to speak with the same
e.g., Amicus Brief of Cutler, et al. (mirroring Applicants’ Emergency Application for
the Applicants before this Court, sufficiently distinguish this case from Bethune-
Hill. The Supreme Court of Pennsylvania should not be permitted to diminish the
8
Finally, Bethune-Hill is distinguishable from this case because the lower
court in that case had given the Virginia House of Delegates an opportunity to
address the issue of redistricting through the legislative process. 139 S. Ct. at 1950.
redistricting, the District Court gave the General Assembly approximately four
infirmity.” Id. (cleaned up) (internal quotation marks and citations omitted). When
reasoning. Id. at 1954. Here, the General Assembly was attempting to react to the
legislative procedures and issued its decisions altering duly enacted election law.
the Court will consider the case on the merits, and more than a fair prospect that a
With a wink and a nod, Respondents and their supporters argue that the
Supreme Court of Pennsylvania’s decision does not actually extend the federal
Election Day in Pennsylvania because it says it doesn’t. They argue that the court’s
9
judicially-created “rebuttable presumption” is enough. However, the Supreme Court
unclear how anyone could establish that a mail-in ballot or absentee ballot was
completed or mailed before or after Election Day. Take, for example, the voter who
signed their ballot on Election Day, saw national election night returns, and
dropped their ballot in the mailbox that evening or the next morning. If that ballot
arrived with an illegible postmark – perhaps smeared in the rain that Wednesday
under the state Supreme Court’s decision. Or perhaps that same ballot did not
receive a postmark because of the pre-paid postage on the envelope. The same late-
cast ballot would still be counted under the order at issue here.
voting will occur under the Supreme Court of Pennsylvania’s order and that a voter
would “have to bribe a postal employee not to postmark the envelope.” Secretary Br.
litigation, found that “‘Postmarks’ are applied to stamped mail to prevent reuse of
the stamp” rather than a measure to gauge when the envelope was mailed. Crossey
et al. v. Boockvar, No. 266 MD 2020 at 22 (Leavitt, P.J.) (Pa. Comm. Ct. Sept. 4,
2020) (Report and Recommendation) (Appendix C). “Commercial mail”, such as the
10
evidence of payment, such as permit imprints, that are linked numerically to
postage accounts. This mail does not bear traditional ‘postmarks’” readable by the
human eye.” Id. “The marks imprinted by the USPS on [election mail] are not
readable by the human eye and would require scanners and software to decode.” Id.
at 22-23. In the end, the Supreme Court of Pennsylvania’s own Special Master
provided by the county boards of elections to voters for mailing their completed
ballots, will be postmarked. A postmark would evidence the date the voter placed
received after Election Day and lack any legible postmark undoubtedly will result in
votes being voted and cast after election day. Counting votes that have been cast
after Election Day allows ballots to be cast on multiple days after the nationally-
mandated uniform Election Day in violation of federal law. The Supreme Court of
Pennsylvania’s decision will result in precisely the kinds of problems that motivated
and non-uniformity. See, e.g., Application at 12, 16. As this Court recognized in
Crawford v. Marion County Election Board, the fact that voter fraud is a felony does
not mean that it does not occur and a lack of evidence of such fraud occurring in a
particular jurisdiction does not detract from the legitimacy or importance of the
State’s interest in counting only eligible votes. 553 U.S. 181, 194-197 (2008).
11
Respondents and their supporters also attempt to lure this Court into
believing that Applicants are arguing that the fault in the Supreme Court of
Pennsylvania’s decision is its permission to count votes after Election Day. There
can be no other explanation for this argument other than a blatant attempt to
Application for Stay demonstrates that Applicants’ primary issue with the court’s
decision is its allowance of the casting of votes (i.e. voting) after November 3, 2020,
as well as the counting of those votes after November 3, 2020. See, e.g., Application
at 15-17. This is because, in the words of this Court, “When the federal statutes
officeholder . . . .” Foster v. Love, 522 U.S. 67, 71-72 (1997). When this Court
decision, both of these actions can occur on and after November 3, 2020. This results
law. Arguing that Applicants claim anything to the contrary is nothing but a red
the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). 52 U.S.C.
12
3 U.S.C. § 1 rather than a state court fashioned state law. Through UOCAVA,
Congress, which possesses authority to set the times, places, and manner of
elections through the Elections Clause, made the determination to treat military
and oversees voters differently. These are individuals whom Congress has
determined are under much different circumstances than other domestic voters. For
he or she receives care packages from family members back home in the United
States, it is only because his or her family sent the package weeks before. And when
his or her family receives a letter from that uniformed voter, it is only because that
uniformed voter sent it weeks before as well. The same holds true for the uniformed
voter’s ballot.” VoteVets Action Fund v. Detzner, No. 4:18cv524-MW/MJF (N.D. Fla.
2018). UOCAVA “gives overseas voters the opportunity to vote on equal terms with
cannot be read to conflict. Courts “must read the statutes to give effect to each if [it]
can do so while preserving their sense and purpose.” Watt v. Alaska, 451 U.S. 259,
267 (1981). In Get Oil Out! Inc. v. Exxon Corp., 586 F.2d 726 (9th Cir. 1978), this
Court said:
13
1993, 48 L. Ed. 2d 540 (1976), quoting Morton v. Mancari, 417 U.S.
535, 551, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974).
586 F.2d at 729. In reading UOCAVA consistent with 2 U.S.C. § 1, 7 and 3 U.S.C. §
decision, as the action of a branch of a state government, does not require such a
The Pennsylvania Democratic Party also argues that the policy judgment of
the Supreme Court of Pennsylvania is valid because everybody else is doing it.
portion of states “that permit late-arriving ballots do not require an Election Day
decision is sound. However, these presumptions are either very new, untested, or
the subject of ongoing litigation. The Pennsylvania Democratic Party only points to
non-postmarked ballots are valid. Of those states, the presumption in Nevada was
adopted by the legislature and signed by the Governor (both of the same political
party) this year and has not yet been subject to challenge. The presumption in New
Jersey was adopted by the legislature and signed by the Governor (both of the same
political party) specifically for 2020 and has not yet been subject to challenge.
5 Nev. Rev. Stat. AB 4, § 20(2) (“If a mail ballot is received by mail not later than 5 p.m. on the third
day following the election and the date of the postmark cannot be determined, the mail ballot shall
be deemed to have been postmarked on or before the day of the election.”).
6 N.J. Stat. Ann. § 19:63-31(m) (adopting a similar standard as long as the ballot arrives within two
(adopting a presumption that non-postmarked ballots arriving within one week of Election Day were
mailed on or before Election Day unless a preponderance of the evidence demonstrates otherwise).
14
Neither of these states’ changes were a result of a state court order. Finally, the
presumption in Minnesota was the product of a state court judicial settlement (in
which the executive branch agreed with the relief the Plaintiffs sought), which is
arguing that the Pennsylvania General Assembly has essentially delegated its
and Equal Elections Clause. Similarly, the majority of the Supreme Court of
elections because of a state statute that does no such thing. See Slip Op. 21 n. 17, 35
(citing 25 P.S. § 3046). These arguments have no basis in reality or law. A plain
reading of both Pennsylvania’s Free and Equal Elections Clause and Section 3046
free and equal; and no power, civil or military, shall at any time interfere to prevent
the free exercise of the right of suffrage.” Pa. Const. art. I, § 5. Nothing in the plain
15
language of the Free and Fair Elections Clause authorizes the Pennsylvania
judiciary to set or alter the times of federal elections. Certainly nothing in the rest
of the Pennsylvania Declaration of Rights or its Inviolate Clause does so either. See,
Nevertheless, the Supreme Court sought authority to alter the timing of the
November 2020 General Election through Section 3046 of the Pennsylvania Election
16
25 P.S. § 3046. This section sets forth statutory duties and powers of the Courts of
Common Pleas throughout the Commonwealth to “carry out the applicable laws on
the day of an election and safeguard compliance with the Code to ensure elections
run smoothly and fairly for all voters.” In re Special Election for the 18th Pa. House
Dist., 2020 Pa. Dist. & Cnty. Dec. LEXIS 935 (Pa. Ct. Comm. Pleas Apr. 3, 2020)
the words of the Supreme Court of Pennsylvania itself, jurisdiction under Section
3046:
by the very terms of the grant, does not attach until seven o’clock a.m.
on the day of each primary or election and then endures only until ten
o’clock p.m. of the same day or for the relatively brief period of time
thereafter “necessary to secure a free, fair and correct computation and
canvass of the votes cast at said election.” The express designation by
the statute of the time and instances in which the jurisdiction may be
exercised implies a negative on the exercise of such power at any other
time or in any other cases . . . .
Finnegan Appeal, 366 Pa. 6, 7-8 (Penn. 1950). Contrary to the Supreme Court of
3046 is limited and necessarily restricts it from acting beyond those limits. Id.
17
The Supreme Court of Pennsylvania’s reliance on a 33-year old trial court
opinion, In re General Election-1985, 531 A.2d 836, 838-39 (Pa. Cmwlth. 1987),
bears no weight on Applicants’ arguments under the Elections Clause, U.S. Const.
art. I, § 4. That case is inapposite here because it did not involve the alteration of
the timing of a federal election—only a state election. See generally id. State
elections of course fall outside the purview of the Elections Clause. See U.S. Const.
art. I, § 4.
Independent Redistricting Comm’n, 576 U.S. 787 (2015), Smiley v. Holm, 285 U.S.
355 (1932), and Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). According to
commission (Arizona, 135 S. Ct. at 2668) belong to “the method which the state has
prescribed for legislative enactments.” Smiley, 285 U.S. at 367. Pennsylvania’s Free
and Equal Elections Clause is different because it does not create a legislative
“method.”
role in enacting Pennsylvania’s Free and Equal Elections Clause, 25 P.S. § 3046,
and Pennsylvania’s Declaration of Rights, it has never delegated to the judiciary its
legislative authority over the times, places, and manner of federal elections. See
18
supra. In Arizona State Legislature, the Arizona Legislature had reserved to the
people of Arizona some of its legislative power via ballot initiative. Arizona State
Legislature, 576 U.S. at 795-96. Commensurate with that legislative power, the
people of Arizona adopted a new manner of redistricting, which set the places of
elections under the Elections Clause. Id. at 795-98. Here, contrary to Arizona State
Legislature, the General Assembly has not delegated any of its legislative power to
the body altering federal election procedures, in this case the Pennsylvania
judiciary rather than the people of Arizona. The Pennsylvania judiciary does not
and cannot legislate. See, e.g., Pa. Const. art 2, § 1 (vesting legislative power in
Witkin, 22 A.2d 17, 23 (Pa. 1941) (“This is an argument which should be addressed
to the legislature and not to the courts, for the duty of courts is to interpret laws,
not to make them.”). Accordingly, unlike the people of Arizona in Arizona State
legislative enactments.
legislation provisions are consistent with the Elections Clause because its term
19
Arizona, 135 S. Ct. at 2668. By contrast, the term “Legislature” in no way refers to
provisions. And affording states power to define their legislature (i.e., how laws
must be passed) is not to afford them power to tie the legislature’s hands with policy
prescriptions that must be interpreted and applied by other bodies that are not “the
Legislature.” The argument that Pennsylvania’s Free and Equal Elections Clause
enjoys the imprimatur of “the people,” but that four state judges can rewrite any
state statute at will, runs afoul of Arizona State Legislature’s vociferous defense of
“modes of legislation that place the lead rein in the people’s hands.” 135 S. Ct. at
under the Elections Clause to set and alter the times, places, and manner of federal
elections would gut the Elections Clause of any meaning or power whatsoever. It
would permit judges—partisan and nonpartisan alike—to alter and set federal
Respondent Secretary at 5, n. 2. This cannot and should not be permitted under the
Elections Clause, or else this Court risks making the Elections Clause entirely
meaningless.
20
IV. THAT THE SUPREME COURT OF PENNSYLVANIA WAS
OSTENSIBLY RULING ON STATE SUBSTANTIVE LAW DOES
NOT SAVE ITS OPINION FROM VIOLATING FEDERAL LAW.
each state to “the Legislature thereof,” the Constitution necessarily denies that
supra at Sec. III. Indeed, nothing in the Constitution’s text or structure suggests
that a state legislature acting under the Elections Clause can be subject to a state
Any claim that cases such as Smiley v. Holm, 285 U.S. 355 (1932), Ohio ex
rel. Davis v. Hildebrant, 241 U.S. 565 (1916), and Arizona State Legislature v.
Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), hold that
completely false. Those cases hold only that “the Legislature” must pass Elections
Clause legislation through the state’s “manner” of lawmaking. Smiley, 285 U.S. at
state legislative enactments. Indeed, many courts have enforced a state statutory
Commonwealth ex rel. Dummit v. O’Connell, 181 S.W.2d 691, 692, 694 (Ky. 1944)
untrammeled by the provision of the State constitution, which requires the elector
21
of State representatives to give his vote in the town or place wherein he resides”); In
re Opinions of Justices, 37 Vt. 665 (Vt. 1864) (applying state constitutional provision
Cooley et al., Treatise on the Constitutional Limitations Which Rest Upon the
Legislative Power of the States of the American Union 903 & n.1 (7th ed. 1903).
light of the Elections Clause. Indeed, multiple Justices of this Court have expressed
that there “must be some limit on the State’s ability to define lawmaking by
excluding the legislature itself in favor of the courts.” Colo. Gen. Assembly v.
Salazar, 541 U.S. 1093, 1094 (2004) (Rehnquist, C.J., dissenting from the denial of
certiorari); See also, e.g., Bush v. Gore, 531 U.S. 98, 112-13 (2000) (Rehnquist, C.J.,
concurring).
statute, and assumes the role of an arbitrary legislator in every particular case.
When the rights of a party are clearly established by defined principles of law,
equity should not change or unsettle those rights. Equity follows the law.” App. C at
32 (cleaned up) (quoting Piper v. Tax Claim Bureau of Westmoreland County, 910
A.2d 162, 165 (Pa. Cmwlth. 2006); First Federal Savings and Loan Association v.
22
V. THE PURCELL PRINCIPLE AIDS RATHER THAN HINDERS
APPLICANTS.
relief, not this Court’s grant of Applicants’ Emergency application for stay.
were educated that their ballots must be received by their county election office by 8
p.m. on November 3, 2020. See Reply Appendix C. Some of this education and
guidance was even occurring after September 17, 2020. See id.; Furthermore, the
Pennsylvania Secretary of State did not even update her website to reflect the
change until September 23, 2020, after Applicants filed their application for a stay
https://web.archive.org/web/*/https://www.votespa.com/Voting-in-PA/Pages/Mail-
https://web.archive.org/web/20200923064032/https://www.votespa.com/Voting-in-
must be RECEIVED by your county election office - postmarks are not enough) with
Penn. Secretary of State, Mail-in and Absentee Ballots, (archived on September 23,
https://web.archive.org/web/20200923215559/https://www.votespa.com/Voting-in-
PA/Pages/Mail-and-Absentee-Ballot.aspx.
stay from this Court, that has disrupted the orderly administration of elections. The
23
insulate the decision of the Supreme Court of Pennsylvania by issuing guidance and
then claiming a reliance interest after Applicants already applied for a stay.
CONCLUSION
grant a stay of the portions of the Supreme Court of Pennsylvania’s decision: (1)
forcing election officials to accept ballots received after Election Day to be counted
even if they lack a legible postmark; and (2) extending the absentee and mail-in
Respectfully submitted,
JASON B. TORCHINSKY
Counsel of Record
JONATHAN P. LIENHARD
SHAWN T. SHEEHY
DENNIS W. POLIO
HOLTZMAN VOGEL
JOSEFIAK TORCHINSKY PLLC
15405 John Marshall Hwy
Haymarket, VA 20169
(540) 341-8808
(540) 341-8809
Jtorchinsky@hvjt.law
LAWRENCE J. TABAS
Centre Square West
1515 Market St., Suite 3400
Philadelphia, PA 19102
(215) 665-3158
24
lawrence.tabas@obermayer.com
25
APPENDIX A
Received 8/24/2020 10:40:55 AM Commonwealth Court of Pennsylvania
Pro Tempore, and Jake Corman, Senate Majority Leader (“Applicants”), by and
OMC\4821-3894-7784.v1-8/24/20
Senators Scarnati and Corman have been duly authorized to act in this
matter by each of the members of the Senate Republican Caucus, which constitute
At any time during the pendency of an action, a person not a party thereto
shall be permitted to intervene therein, subject to these rules if . . .
(3) such person could have joined as an original party in the action or could
have been joined therein; or
(4) the determination of such action may affect any legally enforceable
interest of such person whether or not such person may be bound by a
judgment in the action.
Pa.R.C.P. 2327.
determining the times, places, and manner of holding elections under Art. 1, §4 of
OMC\4821-3894-7784.v1-8/24/20
the U.S. Constitution and Art. 2, §1 of the Pennsylvania Constitution; and of
interests satisfy Pa.R.C.P. 2327(4), this Court must not “confus[e] weakness on the
merits with the absence of … standing.” Ariz. State Legis. v. Ariz. Indep.
Redistricting Comm'n, 135 S. Ct. 2652, 2663 (2015). This is because the analysis
here is dependent upon the source and nature of the interest asserted, not on the
merits of the claim. See id. (quoting and citing Warth v. Seldin, 422 U.S. 490, 500
(1975)). Additionally, the threshold to satisfy Pa.R.C.P. 2327(4) is lower than the
threshold to establish standing. See Allegheny Reprod. Health Ctr. v. Pa. Dep't of
Human Servs., 225 A.3d 902, 910-911 (Pa. Comm. Ct. 2020).
PETITIONERS CLAIMS
county boards to receive ballots by 8pm on Election Day. Instead, Petitioners ask
this Court to rewrite the legislation to compel state officials to accept ballots after 8
p.m. on Election Day. Petitioners request that this Court require Respondents to
count ballots that are postmarked no later than 8 p.m. on Election Day and received
OMC\4821-3894-7784.v1-8/24/20
by the respective county board within one week of Election Day. Pet. ¶ 178 (Count
II).1
“more tailored ballot extension deadline to the date that is 21 days after the
particular voter’s ballot is mailed by the county.” Pet. ¶ 179. This extension cannot
be past November 10, 2020 and the extension does not apply if the county board of
elections mails the voter’s ballot within 24 hours of the board receiving the ballot
8. Petitioners also request that the county boards provide each mail-in elector
long as the defect is cured prior to November 10, 2020. Pet. ¶ 187 (Count III).
crafted election-related deadlines, the Petitioners seek to alter what the Legislature
determined was the “Place” for the election, namely at the offices of the county
board. Pet. ¶ 165 (Count I). Petitioners ask that this Court declare that each county
board has the discretion to provide additional “secure, easily accessible locations”
for voters to drop-off their mail-in ballots. Pet. ¶ 165. Petitioners also seek a
1
On June 1, 2020, the Governor issued an emergency order extending the deadline for the receipt of mail-in ballot
in certain counties in advance of the June primary. See Executive Order 2020-02, Extension of Deadline for Receipt
of Absentee and Mail-In Ballots in Certain Counties (June 1, 2020) (attached to the accompanying memorandum lf
law as Ex. B). Although the Executive Branch believes it has authority to grant at least some relief sought to
Petitioners, the Senators do not agree that the Governor has the authority to unilaterally alter election related
deadlines.
2
See fn. 1, supra. It is unclear the scope of the authority the Executive Branch claims here.
OMC\4821-3894-7784.v1-8/24/20
mandatory injunction from this Court ordering the county boards to “evaluate the
plan reflecting the needs of the citizens of the county to ensure the expedient return
invalidating ballots if the voter forgot to place the ballot inside an official election
ballot envelop or otherwise displays the identity of the voter. Pet. ¶¶ 197-99 (Count
IV).
poll watchers to serve only in counties where they are not also a qualified
Elections oppose the relief Petitioners seek with respect to notifying voters of
curable defects on their ballots (Count III) and the residency restrictions for poll
watchers (Count V), they are agreeable to a three-day extension of the deadline for
mail-in ballots, allowing the use of drop-boxes for delivery of mail-in ballots, and
interests regarding Petitioners’ requests for relief in Counts I, II, and IV.
OMC\4821-3894-7784.v1-8/24/20
14.Proposed Intervenors, together with the House of Representatives, seek to
protect rights and obligations that the U.S. Constitution vests in the Pennsylvania
legislature, namely the right to enact the times, places, and manner of holding
elections under the Constitution’s Elections Clause. See U.S. Const. art. I, §4.
16.In enacting Act 77, the Legislature permitted all Pennsylvania voters to vote
by mail, but chose not to disrupt the election-related deadlines by extending the
the integrity and uniformity of elections by preventing acts that invite fraudulent
practices.
OMC\4821-3894-7784.v1-8/24/20
19.Count II, Pet. ¶¶ 178-79, asks that this Court use its equitable powers to alter
boards must receive ballots. This request for relief infringes on the legislature’s
acts that invite fraudulent practices and therefore directly harms the legislature’s
20.Count IV, Pet. ¶¶ 197-99 also infringes the right of the legislature to devise
rules for the counting of ballots, which relates to the “Manner” of conducting
elections.
21.Because Petitioners request that this Court modify election laws, laws whose
creation the U.S. Constitution and the Pennsylvania Constitution have vested in the
WHEREFORE, for the reasons set forth above and more fully set forth in the
whose majorities they represent with respect to Counts I, II and IV the Petition for
Review.
OMC\4821-3894-7784.v1-8/24/20
LLP
OMC\4821-3894-7784.v1-8/24/20
APPENDIX B
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ORDER
PER CURIAM
AND NOW, this 3rd day of September, 2020, the motion to intervene filed by
Joseph B. Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake Corman,
Senate Majority Leader, representing the Republican Senate Caucus, is GRANTED. The
applications to intervene filed by Donald J. Trump for President, Inc., and the Republican
Pennsylvania, the Black Political Empowerment Project, Make the Road Pennsylvania,
Patricia M. DeMarco, Danielle Graham Robinson, and Kathleen Wise are DENIED. The
denial of the motions to intervene is without prejudice to the parties’ ability to file briefs as